Water groups brace for fight

A survey by the Colorado Water Congress indicates voters trust local water providers, support agricultural water values and generally favor the existing legal framework of water rights in Colorado.

The group is gathering the information in preparation for the possible return of a public trust question on next year’s ballot.

“The public trust doctrine in Colorado would be unlimited employment for water lawyers,” Doug Kemper, executive director of CWC, told the Southeastern Colorado Water Conservancy District last week.

“The survey showed most people are uncertain, but (the public trust proposal) does have certain resonance,” Kemper said. “Most people are comfortable with local control of water.”

The CWC has been gearing up for a return bout with Richard Hamilton of Fairplay, who is planning on using the same ballot language that finally was approved in 2012.

Hamilton said legal challenges by the CWC to the ballot title hurt chances for gathering signatures by reducing the time needed, so he withdrew the initiative last July.

After Hamilton earlier this year announced his intentions to begin a campaign for 2014, CWC began a two-year, $325,000 program to counteract the effort.

Water groups, such as the Southeastern district or Pueblo Board of Water Works — even the CWC itself — are limited in their ability to campaign against the measure once it is on the ballot, Kemper said.

The survey provides arguments that might be made by private groups against the proposal. The Colorado Farm Bureau already has stepped up to fill that niche.

The public trust doctrine, relied on by some other states, could throw the state’s prior appropriation doctrine into chaos because it could elevate “public good” arguments above property rights.

The Colorado Constitution provides that those who first divert water to beneficial use have a senior claim to water, and gives domestic use preference over agricultural and manufacturing uses.

Subsequent court cases have interpreted the laws to provide a strict pecking order of water rights within seven water districts in Colorado. Changes in the law in 1969 incorporated groundwater diversions with surface rights. Interstate compacts have added more restrictions about how water can be diverted within the state.